Daniel Terence Goddard and Robin Jack Fallick v R
Jurisdiction | England & Wales |
Judge | Lord Justice Aikens |
Judgment Date | 27 July 2012 |
Neutral Citation | [2012] EWCA Crim 1756 |
Court | Court of Appeal (Criminal Division) |
Docket Number | Case No: 2011/04111/B2 & 2011/04113/B2 |
Date | 27 July 2012 |
[2012] EWCA Crim 1756
Lord Justice Aikens
Mr Justice Sweeney
and
Mr Justice Supperstone
Case No: 2011/04111/B2 & 2011/04113/B2
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM READING CROWN COURT
HHJ JOHN
T20107121
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr. C Parker QC & Mr. A Morris (instructed by Hines Solicitors) for the Appellant
Mr. J Price QC (instructed by CPS) for the Respondent
Hearing date: 13/07/2012
On Friday 13 July 2012 we heard appeals against conviction brought by Daniel Goddard and Robin Fallick, aged respectively 35 and 27. The appellant Goddard also appealed against sentence. All appeals were brought with the leave of the single judge. At the end of the hearing of the conviction appeals we announced that they would be allowed for reasons that we would set out in writing. These are our reasons. As Goddard's appeal against conviction was allowed his sentence appeal became immaterial and we did not hear argument about it.
The convictions and sentences
On 17 January 2011 in the Crown Court at Reading before HHJ John the two appellants pleaded guilty to a number of offences of making or possessing indecent photographs of children. They are not the subject of the present appeals but are relevant to them nonetheless.
On 23 June 2011 after a trial before HHJ John and a jury at Reading Crown Court the two appellants were both convicted of conspiracy to rape a child under 13. That allegation was the subject of count 1 on the indictment. The particulars of the offence stated that Goddard and Fallick "between 14 th day of September 2006 and 16 th day of September 2006 conspired together to rape a male child under the age of 13 years". For that offence each appellant was sentenced to 6 years imprisonment. Goddard was sentenced to 6 months imprisonment for the indecent photograph offences, to be served consecutive to the conspiracy offence. The total sentence imposed on the appellant Goddard was therefore 6 1/2 years less time spent on remand. Fallick was sentenced to a total of 14 months imprisonment for the indecent photograph offences, also to be served consecutive to the sentence of the conspiracy offence. Thus Fallick's total sentence was 7 years and 2 months less time spent on remand.
Orders consequent upon those convictions and sentences were also made; in particular both appellants were subject to Sexual Offences Prevention Orders ("SOPOs") and requirements to register as sex offenders.
The appellant Fallick was acquitted of making one indecent photograph of a child (level 1), which was the subject of count 16. The jury were discharged from giving a verdict on count 2 which was an alternative to count 1. That count alleged that Fallick had incited Goddard to rape a child under 13 years. On the prosecution's case the child concerned was the same one as was the subject of count 1.
The facts
The facts that gave rise to the charges started to come to light as a result of a police search of Goddard's flat in Slough on 7 August 2007 when he was first arrested. His laptop was seized and was found to contain many indecent images of children which became the subject of counts 3�14 to which Goddard pleaded guilty. His mobile phone was also seized and analysed. A number of text messages from Fallick were found on it. Fallick's number was stored on Goddard's phone as "Rob in2 young", which was interpreted as meaning "Rob into young".
A number of text messages received by Goddard from Fallick dated 15 September 2006 appeared to represent one side of an exchange about raping a six year old boy. The exchanges start at 09.35 and go on until 15.10. They are as follows:
Time (hour:min:sec) | Message Fallick to Goddard |
09:35 | I need some help rapin a 6yo |
09:37:06 | Next friday night |
09:39:57 | Its rob in slough |
09:41:53 | tis ok. So your in? |
10:46:27 | He's about 4ft dark hair and eyes, slim, toned stomach tight round ass and perfect legs. Really soft smooth skin and ruby red lips. |
11:02:29 | He'll be with me, he's 6 |
11:09:18 | Next friday. Yes we can do stuff but we need to make sure he doesn't drop us in it. i'm best friends with his mum, drug him is a poss? |
11:12:45 | He'll be at school |
11:34:46 | Yeah all night. And maybe saturday too. |
12:49:30 | Your thick cock will open his mouth nicely for mine. i'll open his ass ready for you. how many sleeping pills do you reckon |
12:53:36 | I thought about 3 or 4, to totally knock him out. finally a bit of kid fun at last. |
15:10:24 | Ya know wat, fuck the sleeping pills, i wanna hear him moan and scream. I don't care if he says anything. I'm a pedo and proud." |
On 31 March 2009 both appellants were arrested; Goddard in Slough and Fallick in London. Fallick was found to have indecent photographs of children stored on a hard drive, laptop and memory stick. These formed the subject matter of counts 15, 17 and 18 to which Fallick pleaded guilty. The police also seized two cameras one of which contained a photograph of a girl, whom we shall call ML, taken in the garden of her home in July 2006. Fallick denied taking the photograph. It was said to be indecent and that was the subject of count 16 of which Fallick was acquitted.
Both appellants were interviewed on 31 March 2009. Both declined to answer questions. Their evidence at the trial was that this decision was made on the advice of their respective solicitors.
On 10 June 2009 the police visited Fallick's home again and found further indecent images of children which had been downloaded since Fallick's previous arrest. Those formed the subject of count 19 to which Fallick pleaded guilty.
Fallick was friendly with a woman called LL, who had three children. One was the girl ML and another was a boy called HL who had been born in May 2001. In September 2006 he was, therefore, 5 1/2 years old.
The prosecution case and the defence response
The prosecution case was that the text messages from Fallick to Goddard on 15 September 2006 which we have set out above were evidence of an agreement to rape a young boy. The prosecution also relied on evidence of text messages sent by Goddard to others, apparently showing an interest in raping young boys. The prosecution further relied on the convictions of the appellants of possessing indecent photographs of children as showing a keen sexual interest in young boys and also in demonstrating a willingness to break the law in relation to young children. Further evidence on which the prosecution relied to prove that this was a serious plan which was intended by both appellants to be carried out, as opposed to a fantasy, was the fact that there were text messages from Fallick which referred to a particular boy, whom the prosecution said was HL, the son of Fallick's friend LL. The prosecution said HL was the target of the rape plan. The prosecution alleged that this boy was someone to whom Fallick had access through his friendship with the boy's mother. There was evidence that Fallick had said to LL that the boy could stay with him, although in fact he had never done so.
The defence case was that there was no agreement to rape a child and that the text message conversations between the two appellants represented a fantasy from which each gained sexual pleasure and that there was never, either at the outset or thereafter, any intention to carry out any plan. The appellants relied on the fact (which was the case) that they had never met and that in the time that had passed between the exchange of messages on 15 September 2006 and their arrests on these matters in 2009, nothing at all had been done to carry out this alleged plan and the boy who had been the alleged target had not been harmed in any way.
Application to dismiss count 1 and the trial
On 17 January 2011 the judge heard an application to dismiss counts 1, 2 and 16 of the Indictment, viz. the charge of conspiracy to rape a male child under 13, incitement to rape a male child under 13 and taking an indecent photograph of ML. In relation to count 1 it was submitted that it should be dismissed because no agreement to commit conspiracy to rape could be inferred from the evidence on which the Crown relied because the texts represented only one side of a text conversation between Goddard and Fallick. The judge rejected that argument. He gave reasons and noted that the argument had centred on whether, on the basis of the texts set out above, a jury could properly infer that there had been an agreement between the two defendants to rape a male child under 13. The judge accepted that there could be no speculation on what might be on Mr Fallick's mobile. He continued, in relation to count 1 (page 3C-G):
"It has been attractively argued on behalf of Mr. Fallick that if one puts together the issues of opportunity; capability; the passage of time between the sending of the messages and the analysis of the phone and intention, that there is no evidence to support a conspiracy between the two men and so the question for me, therefore, is simply whether there is evidence upon which a jury could, if it chose, safely infer that Mr. Goddard was responding positively to the suggestions in Mr. Fallick's text that Mr. Goddard should assist him in the rape of an identifiable child.
I have carefully considered both the content and the sequence of the text set out in the defence skeleton arguments. I am satisfied that it would be open to a jury properly to infer that a plan was being worked through between Mr....
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